In the latter instance, the assistant would be performing a substantial portion of the individual's job. If the employee cannot perform the job's essential functions with or without reasonable accommodation, the employee is not qualified for the job.
An employer does not discriminate by denying a job to a person who is not qualified to perform it.
In addition, an employer does not need to hire or retain persons who pose a threat to the safety of others--for example, a person with a mental disability who was prone to outbursts of violence.
The ADA protects disabled individuals during the hiring process by prohibiting employers from inquiring about disabilities or subjecting prospective employees to medical tests before hiring them.
Factors the employer may consider in weighing undue hardship include: 1) the nature and cost of the accommodation; 2) the financial resources of the facility requiring the accommodation; 3) the number of workers at the facility; 4) the impact of the accommodation on the facility's expenses, resources or operations; 5) the employer's overall size, nature and resources; 6) the type of operations covered; and 7) the relationship between the facilities covered and the business entity (employer) as a whole.
The standards for reasonable accommodation and undue hardship have proven difficult for courts to apply.
Assuming the employer does not contest the employee's disability, the next question is the required accommodation.
The ADA does not specify who is supposed to take the initiative in accommodating the employee's disability.
Deafness and quadriplegia are clearly disabilities, but many conditions are harder to judge. The fact that the glasses gave them normal eyesight meant they were not disabled, even though the airline that refused to hire them based its decision on their uncorrected vision.
Employers are only required to accommodate a disability of which they know.
An employee cannot bring an ADA claim for an undisclosed condition unknown to the employer.
Employers may, however, ask about a candidate's abilities concerning essential job functions.
After making a job offer, the employer may require a medical examination, so long as the examination is given to all newly hired employees.